Williams v. Bonner

79 Miss. 664 | Miss. | 1901

Terral, J.,

delivered the opinion of the court.

Dr. Williams was a practicing physician at Ellisville, where he resided, and, as surgeon and physician, was called by J. L. Bonner to attend upon his minor daughter, Ruby Bonner, who lived with him, some ten miles in the country. Ruby was involuntarily shot by her own hand, was seriously wounded, and her life despaired of. Dr. Williams was called to her, and his bill for $107.50 is agreed to be reasonable. J. L. Bonner was then, and is yet, the guardian of Ruby, who had a small estate in his hands, and at the time of her misfortune had no order of court to expend any of the capital of her estate for any purpose. The account when made by Dr. Williams was charged simply to <T. L. Bonner. Bonner, it is admitted, is insolvent; and he declined to pay the account, whereupon Dr. Williams brought his suit in chancery against him as guardian of Ruby Bonner. The defenses are: (1) That, Dr. Williams having charged the account at first to J. L. Bonner individually, he is precluded from recovering the same of Bonner as guardian; (2) it is said that Bonner could not, as guardian, contract to pay any sum of money, so as to encroach upon the capital of the estate of the minor in his hands, and therefore a suit could not lie against him as guardian under the circumstances of this ease.

1. We regard it as a matter of small moment tbat the account was first charged against Bonner individually. When all the facts and circumstances relating to the matter and to the persons connected with them were made known to Dr. Williams, he was then at liberty to charge his account as right and justice dictated.

2. The doctrine relating to the duties of a trustee at common law (and in this category the guardian stands to his ward) requires him, when the life of the cestui que trust is put in competition with the expenditure of his property, to sacrifice the latter, if need be, for the former. That medical services are necessaries to an infant may not, upon the authorities, be questioned, and that an infant himself (there being no other to do so) might call in a surgeon, and bind his estate for a reasonable fee, cannot be denied, and what an infant himself might do, we think a guardian could do for. him. The general rule undoubtedly is that a guardian may not ordinarily exceed the income of the ward in his maintenance and education, without a previous order of court therefor. But there are exceptions to the rule, and in a case where the court, if it had foreseen the event, would have made an allowance 'therefor, though exceeding the income of the estate, there the guardian, of his own authority, and without previous authorization, may make the necessary expenditure. In the Law of Infants, by Field (secs. 122 and 123), it is said: “The general principle seems to be that the guardian must not trench upon the corpus of the estate, and allowances for expenditure in advance of the income are only made when clearly demanded by justice, though courts sometimes ratify acts of guardians in spending more than the income of estates upon their wards. The more common rule is that guardians will be protected by the court in necessary, proper and economical disbursements made for the benefit of their wards, though made without prior order of court, and although they trench upon the capital or corpus of the estate; and such disbursements will be allowed as credits if it appears to the court, on inquiry, that the expenditures were such as the court would have allowed or ordered had previous application been properly made for that purpose.” In North Carolina an expenditure above the income of the ward, without a previous order of court, made by the guardian for the benefit of the health of the ward, in sending him to a distant locality, was allowed. Long v. Norcom, 37 N. C., 354. In speaking of credit asked, by the guardian made for his education and main-tence in excess of the income of the ward without a previous order of court, the court, in Frelick v. Turner, 26 Miss., 394, said: “It is only in very special cases, such as could not be foreseen, that the court ought, under any circumstances, to sanction a charge of this kind not previously authorized by the court.” Assuredly the case here before us, not to be anticipated by human wisdom or foresight, in which the despair of life of the ward calls for aid from the principal of her own estate, and which aid none other would render, is one of the cases covered by exceptions mentioned by the court. We think the complainant should have recovered.

Reversed and remanded.